Citation Nr: 21002870 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-44 873 DATE: January 19, 2021 ORDER Entitlement to a compensable evaluation for the Veteran’s headaches is denied. Entitlement to an increased evaluation in excess of 20 percent for the Veteran’s cervical spine disability is denied. Entitlement to an increased evaluation in excess of 50 percent for the Veteran’s major depressive with somatic symptom disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to July 7, 2014 is denied. FINDINGS OF FACT 1. The medical evidence of record does not show the Veteran’s headaches was manifested by characteristic prostrating attacks averaging one in two months over the past several months. 2. The medical evidence of record does not show the Veteran’s cervical spine disability manifests with forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 3. The medical evidence of record shows the Veteran’s major depressive with somatic symptoms disorder was manifested by depression, anxiety, chronic sleep impairment, restricted affect, irritability, problems with relationships, social isolation, and difficulty in establishing and maintaining effective work and social relationships, resulting in a disability picture that more nearly approximates that of occupational and social impairment with reduced reliability and productivity. 4. For the period prior to July 7, 2014, the Veteran does not meet the schedular TDIU requirements and the preponderance of the evidence is against finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for the Veteran’s headaches from August 17, 2017 to December 24, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124, Diagnostic Code 8100. 2. The criteria for a rating in excess of 20 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5242. 3. The criteria for a rating in excess of 50 percent for major depressive with somatic symptom disorder have not been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. § 3.102, 3.159, 4.7, 4.124(a), 4.130, DC 9434. 4. The criteria for entitlement to a TDIU prior to July 7, 2014 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § § 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty service with the Air Force from August 19896 to August 1990. This matter is on appeal from a June 2011 and an October 2014 rating decision. The Veteran was afforded an August 2019 hearing with the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board remanded this appeal in December 2019 for additional development. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner’s assessment of the level of disability at the time of examination. The rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Headaches The Veteran is currently service connected for headaches evaluated at a noncompensable rating under Diagnostic Code 8100. Under 38 C.F.R. § 4.124a , Diagnostic Code 8100, a noncompensable evaluation is warranted for migraines with less frequent attacks; a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months; a 30 percent evaluation is appropriate in cases of characteristic prostrating attacks occurring on an average of once a month over the last several months; and, a 50 percent rating is appropriate with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Significantly, the use of the conjunctive “and” in a statutory provision means that all of the conditions listed in the provision must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). Here, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating (at least what could be considered most of them), each of the criteria in the 50 percent rating must be met in order to warrant such a rating. The Board notes that § 4.7 is not applicable to DCs that apply successive rating criteria, such as DC 8100. It is successive because the criteria of each lower disability rating are included in the higher disability rating. Though the Diagnostic Code does not provide a definition for “prostrating,” prostration is defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). Additionally, the term “productive of severe economic inadaptability” is also not defined in veterans’ law. However, the Court has stated that this term is not synonymous with being completely unable to work and VA has conceded that the phrase “productive of” could be read to mean either “producing” or “capable of producing” economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 44647 (2004) (stating that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating”). The Veteran was afforded a September 2014 VA examination. The examiner noted the Veteran reported “headaches for the past 2 years…then states since 1998”; the examiner also noted that the Veteran’s medical record indicated complaints of headaches since 2011. The examiner found the Veteran with symptoms of pulsating or throbbing head pain affecting both sides of the head; the Veteran described this as his whole head and neck hurting. The examiner found the duration of pain lasted less than 1 day, as well as hurting the Veteran’s neck and shoulders. The examiner did not find the Veteran suffered from any characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner noted that a neurologic exam was non-focal and pain and impaired range of motion (ROM) was noted in the Veteran’s neck and right shoulder. The examiner found the Veteran’s headaches did not result in functional impact. In an October 2014 medical record, the Veteran noted that when his neck hurts, he suffered from headaches. In a March 2016 statement, the Veteran stated that after suffering a motor vehicle accident in 1988, the Veteran suffered from degenerative arthritis in his neck that caused constant severe headaches. The Veteran was afforded a March 2016 VA examination. The Veteran reported headaches since 1988 along with complaints of neck pain. The examiner found the Veteran with symptoms of pulsating or throbbing head pain affecting both sides of the head; the Veteran described his symptoms as starting is neck and then going to the top and sides of his head. The examiner found the symptoms lasted less than a day and affected both sides of the Veteran’s head. The examiner did not find the Veteran suffered from any characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner noted that a neurologic exam was non-focal, and the Veteran’s headaches did not result in functional impact. In a May 2016 VA examination for the Veteran’s cervical spine, the Veteran reported symptoms of sharp, constant pain causing frequent headaches. In a March 2019 emergency room visit, the Veteran complained o0f ongoing headaches and neck pain for the past 2 months. The Veteran reported degenerative joint disease in his neck causing headaches. In a March 2019 claim, the Veteran stated that his headaches had become worse since his disability had been granted service-connection. The Veteran was afforded a March 2019 VA examination. The Veteran reported neck pain with headaches caused by prolonged or excessive neck motion. The examiner found the Veteran with symptoms of pain on both sides of the head that worsened with physical activity. The examiner did not find the Veteran suffered from any characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner found the Veteran suffered functional loss of decreased physical and mental performance during headaches. At the Veteran’s August 2019 hearing, the Veteran testified that he had migraine headaches every day that he treated with pain medication. The Veteran stated that whenever his head hurts “I don’t like to get up or move around or do anything” and would stay in bed. The Veteran reported that this would happen “every day I’m having a headache” and noted that he went to the emergency room a few months back when the pain became bad. The Veteran was afforded a September 2020 VA examination. The Veteran reported headaches occurring 2 to 3 times a week that affected both sides of his head with no other associated symptoms. The Veteran stated that his headaches arise whenever he does excessive activity with his neck. The examiner found the Veteran with symptoms of pain on both sides of the head lasting less than one day. The examiner did not find the Veteran suffered from any characteristic prostrating attacks of migraine or non-migraine headache pain or with any other pertinent physical findings, complications or conditions. The examiner found the Veteran suffered functional loss of decreased physical and mental performance during headaches. After review of the evidence, the Board finds that a compensable evaluation for the Veteran’s service-connected headaches is not warranted. Review of the medical treatment record during this period does not show any documentation of the Veteran suffering from symptoms that rise to the level of prostrating attacks. Although the Veteran reported symptoms of pain that would keep him in bed, there is no competent medical finding that these symptoms rose to the level of severity or frequency to approximate the severity contemplated by the criteria for a compensable rating under 38 C.F.R. § 4.124a , Diagnostic Code 8100, which require a minimum of characteristic prostrating attacks averaging one in two months over the last several months. There is no probative evidence or finding of record to show that the Veteran experienced prostrating headache attacks at any time during the relevant period. Although the Veteran testified that he experienced severe headaches that left him in bed, the VA examiners did not find the Veteran suffering from prostrating attacks. The Board acknowledges the Veteran and his representative’s statements regarding his symptoms for headaches. However, while the Veteran is competent to report his symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical conditions based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places more probative weight on the medical evidence of record. The Board has also considered whether the Veteran’s disability has warranted a higher evaluation under a different diagnostic code at any time during the appeal. In this regard, Diagnostic Code 8100 contemplates the symptoms of the Veteran’s headaches. Additionally, there is no indication of any other schedular criteria that would afford the Veteran a more favorable rating under a different diagnostic code, nor does the record suggest that there are any separately ratable symptoms of the Veteran’s disability. A compensable rating for a vestibular disorder, such as vertigo, requires objective findings supporting a diagnosis of vestibular disorders, and there is no indication of any such findings here. See 38 C.F.R. § 4.87, Diagnostic Code 6204. Moreover, neither the Veteran nor his representative have identified any other potentially applicable diagnostic code that would afford the Veteran a greater benefit. As such, the Board finds that criteria for entitlement to a compensable initial rating for headaches have not been met. As the preponderance of the evidence is against a finding for compensable evaluation for headaches, there is no doubt to be resolved; and an increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Cervical Spine disability The Veteran’s cervical spine disability is currently rated at 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5242. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under 38 C.F.R. § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint.” 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Petitti v. McDonald, 27 Vet. App. 415 (2015). For purposes of 38 C.F.R. § 4.59, objectively confirmed limitation of motion must be corroborated by a person, either lay or medical professional, and may not be satisfied by the Veteran’s own observations. Id. The most recent amendment to 38 C.F.R. § 4.71a changed the Diagnostic Codes for spine disorders to 5235 to 5243, and spine disorders are rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that a rating of 10 percent is assignable for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. A 20 percent is assignable for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A 40 percent rating is assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees; extension is 0 to 45 degrees; left and right lateral flexion are zero to 45 degrees; and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. Id. at Note (2). Each range of motion measurement is to be rounded to the nearest five degrees. Id. at Note (4). Also, the current schedular rating criteria instructs to evaluate intervertebral disc syndrome (IVDS or degenerative disc disease) either under the general rating formula for diseases and injuries of the spine or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part): a 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455 (Aug. 27, 2003).as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under 38 C.F.R. § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint.” 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Petitti v. McDonald, 27 Vet. App. 415 (2015). For purposes of 38 C.F.R. § 4.59, objectively confirmed limitation of motion must be corroborated by a person, either lay or medical professional, and may not be satisfied by the Veteran’s own observations. Id. Review of the medical treatment record shows multiple complaints and treatments for neck pain. The Veteran was afforded an April 2011 VA examination. The Veteran reported pain in his neck radiating into his shoulders with flareups occurring 2 to 3 times week when it was “worse than usual.” Upon physical examination, the Veteran’s range of motion (ROM) was measured at 20 degrees flexion; 25 degrees extension; 15 degrees “lateral bend”; and 15 degrees “lateral deviation” with pain. The Veteran was able to perform repetitive testing without additional loss of motion and demonstrated 4/5 strength. X-ray testing found degenerative changes in the cervical spine. In a May 2012 form 9 statement, the Veteran stated that his condition was not getting any better and that he could “feel the pain.” The Veteran was afforded a May 2016 VA examination. The Veteran reported symptoms of increasing neck pain described as constant sharp pain in the neck that caused him to have frequent headaches and decreased ROM due to pain and stiffness. The Veteran stated that symptoms of decreased ROM of the neck, pain with neck movement and frequent headaches resulted in functional loss. The Veteran did not report any flareups. Upon physical examination, the Veteran’s ROM was measured at 40 degrees flexion; 35 degrees extension; right lateral flexion at 25 degrees; left lateral flexion at 35 degrees; right lateral rotation at 40 degrees; and left lateral rotation at 60 degrees. Pain was noted on all motions, and evidence of pain with weight bearing was found by the examiner. The Veteran was able to perform repetitive testing without additional loss of motion. The examiner found the examination was neither medically consistent or inconsistent with the Veteran’s statements describing function loss during repetition or flareups. The examiner found no evidence of guarding or muscle spasm of the cervical spine. The Veteran demonstrated full strength without atrophy; normal reflex; and normal sensation. The examiner found no evidence of radiculopathy, ankylosis, or IVDS. The examiner found the Veteran’s cervical spine disability impacted his ability to work. The examiner noted the Veteran reported that he was a foreman in the tree-trimming business and needed to keep looking up every day to inspect work but increased neck pain prevented him from doing his job; the examiner found the Veteran had lost 2 to 3 weeks of work time in the past 12 months. The Veteran was afforded a March 2019 VA examination. The Veteran complained of constant neck pain radiating to his shoulder and hands that was aggravated by prolonged activity. The Veteran did not report any flareups. The Veteran reported functional impairment where he could not turn or twist his neck to look on any side. Upon physical examination, the Veteran’s ROM was measured at 40 degrees flexion; 40 degrees extension; right lateral flexion at 40 degrees; left lateral flexion at 40 degrees; right lateral rotation at 70 degrees; and left lateral rotation at 70 degrees. No pain was noted on exam or with weight-bearing. The Veteran was able to perform repetitive testing with no additional loss of motion. The Veteran reported that pain, fatigue, weakness, and lack of endurance caused functional loss during repetitive use over time. The examiner found the examination neither medically consistent nor inconsistent with the Veteran’s statements describing repetitive use over time. The Veteran stated that after repetitive use over time the “loss of ROM is variable depending on how strenuously the joint was used. At its worst [the Veteran] cannot move it at all due to pain, fatigue, and lack of endurance, but there are other times when ROM loss is minimal.” The examiner found evidence of muscle spasm not resulting in abnormal gait or spinal contour. The Veteran demonstrated full strength with no atrophy; and normal reflex and sensation. The examiner found no evidence of radiculopathy, ankylosis or IVDS. The examiner found the Veteran’s cervical spine disability resulted in functional impact where the Veteran would be unable to do activities requiring prolonged, excessive, persistent or repetitive motions of the neck. The examiner remarked that that although the Veteran reported subjective symptoms of radiculopathy to include mild intermittent pain; paresthesias and/or dysesthesias; and numbness; the examiner found there was no objective evidence in the examination to support a diagnosis for radiculopathy. The Veteran was afforded a September 2020 VA examination. The Veteran reported neck pain resulting in headaches. The Veteran did not report any flareups or functional loss. Upon physical examination, the Veteran’s ROM was measured at 40 degrees flexion; 40 degrees extension; right lateral flexion at 40 degrees; left lateral flexion at 40 degrees; right lateral rotation at 80 degrees; and left lateral rotation at 80 degrees. No pain was noted on exam. The Veteran was able to perform repetitive testing with no additional loss of motion. The examiner found the examination medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner found pain caused functional loss and estimated the Veteran’s ROM at 40 degrees flexion; 40 degrees extension; right lateral flexion at 40 degrees; left lateral flexion at 40 degrees; right lateral rotation at 70 degrees; and left lateral rotation at 70 degrees. The examiner found no evidence of guarding or muscle spasm. The Veteran demonstrated full strength with no atrophy and normal reflex and sensation. The examiner found no evidence of radiculopathy, ankylosis, or IVDS. The examiner found the Veteran’s cervical spine disability resulted in functional impact where the Veteran would be unable to do activities requiring repetitive, prolonged or excessive use of the neck; such as pushing, pulling, holding, or working overhead. After review of the evidence, the Board finds the preponderance of the evidence is against a rating in excess of 20 percent for the cervical spine disability. In order to warrant a higher, 30 percent schedular rating, the evidence must show the Veteran’s cervical spine disability was manifested by forward flexion limited to 15 degrees of less or favorable ankylosis of the cervical spine. In this case, however, the pertinent evidence of record shows the Veteran’s forward flexion has been limited to no less than 20 degrees, even with pain, after repetitive use testing, and during passive range of motion and flare-ups. The Veteran’s forward flexion was measured at 20 degrees at the April 2011 VA examination while at the most recent VA examination in September 2020 the Veteran’s flexion was measured at 40 degrees. Notably, the examination reports do not reflect that there was any additional limitation of motion noted due to pain or during repetitive motion or passive range of motion. Additionally, while the preponderance of the evidence shows the Veteran has consistently experienced limited, painful range of motion in his cervical spine, he has remained able to demonstrate movement in his cervical spine. Review of the VA examinations of record show the VA examiner did not find the Veteran with ankylosis in his cervical spine and the other evidence of record does not reflect or describe a functional impairment approximating immobility or ankylosis in his neck as a result of pain, weakness, stiffness, guarding, or during flare-ups or repetitive use testing. The Veteran’s functional loss was considered, as the medical evidence shows that the Veteran has reported ongoing chronic neck pain. 38 C.F.R. §§ 4.40, 4.45. However, the examiners generally took limitation caused by pain into account in the findings of range of motion. Thus, the degree of additional limitation caused by pain is already contemplated in the disability rating currently assigned. There is otherwise no evidence of impairment of motor skills, muscle function, or strength. Consequently, the Board finds that a higher compensable rating based on functional loss is not warranted. There is also no competent lay or medical evidence of record showing the Veteran’s cervical spine disability has been manifested by Intervertebral Disc Syndrome (IVDS) or has otherwise resulted in incapacitating episodes as defined by the Formula for IVDS on the Basis of Incapacitating Episodes. Review of the VA examinations of record show the VA examiners did not find the Veteran with IVDS. Therefore, a higher rating for the Veteran’s cervical spine disability is not warranted at any point during the appeal period based upon that criterion. See 38 C.F.R. § 4.71, Diagnostic Code 5243. The Board notes that at the Veteran’s May 2016 VA examination the Veteran reported pain on all motions. The Court has clearly indicated that painful motion does not equate to limited motion. Mitchell, 25 Vet. App. at 41. In fact, the Court considered the argument that pain throughout all ranges should warrant the maximum rating and found that the “Secretary has persuasively argued that such an interpretation would lead to absurd results.” Id. at 43. Indeed, nothing in the case law supports the contention that a Veteran should be given maximum disability ratings simply because he or she may experience pain throughout the range of motion. Id. at 43. Rather, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute a functional loss and it is the presence of this functional loss that is the relevant question in assigning disability ratings. Id. As explained above, although there may be pain on all movement, there is no objective evidence that the Veteran’s pain results in additional functional loss that would warrant an increased schedular rating during this period. The Veteran’s statements of limitations are deemed credible and probative evidence, but such evidence does not show that any additional limitation due to pain does not more nearly approximate a finding of forward flexion limited to 15 degrees of less or favorable ankylosis of the cervical spine.. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5242; DeLuca, 8 Vet. App. at 202; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board also carefully considered the Veteran’s lay statements asserting that his severity of his cervical spine disability has increased. The Board notes the March 2019 VA examiner noted that the Veteran reported a variable loss of motion after repetitive testing depending on how strenuously the joint was used; ranging from “at its worst [the Veteran] cannot move it at all due to pain, fatigue, and lack of endurance” but also admitting “but there are other times when ROM loss is minimal.” The examiner found the examination neither medically consistent nor inconsistent with the Veteran’s statements describing repetitive use over time and did not estimate any additional loss of motion from repetitive use. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a cervical spine disability as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating evaluation in excess of 20 percent for his cervical spine disability. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As the preponderance of the evidence is against the award of an increased evaluation, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Major depressive with somatic symptom disorder The Veteran is currently service connected for a major depressive with somatic symptom disorder evaluated at 50 percent under diagnostic code 9434. As an initial matter, the Board notes that following the December 2019 Board remand for additional development, the Regional Office (RO) attempted to provide the Veteran with a VA examination to obtain medical evidence as to the severity of his disability. The record indicates that in September 2020 the VA examination was canceled per the Veteran’s request with no other details provided as to the reason for cancellation. The Board notes that the Veteran attended other September 2020 VA examinations for the issues on appeal. When a claimant fails to report for an examination scheduled in conjunction with a compensation claim, the Board is to adjudicate the severity of his major depressive with somatic symptom disorder based on the evidence of record. See 38 C.F.R. § 3.655. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner’s assessment of the level of disability at the time of examination. The rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Lastly, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. See 38 C.F.R. § 4.130, DC 9411. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. The Veteran was afforded a September 2014 VA examination. When asked about his family, the Veteran reported a strained relationship with his mother who he noted had dementia and would cause issues with stressful interactions and refusal to take or seek medical attention. The Veteran reported a strained relationship with his siblings and stated that he does not talk or see that much. The Veteran reported he was married since 1998. The Veteran described this marriage as strained due to finances, health and “other things.” The veteran denied any domestic violence but stated that there had been several separations. The Veteran stated that he had one daughter with whom he had a good relationship with. The Veteran reported that in 1998 he was arrested for driving under the influence (DUI) and vehicular manslaughter; the Veteran stated that he served 4 months in jail and 3 years of probation. The Veteran stated that he had old friends but did not see them as he rarely leaves the house. The Veteran stated that he avoids others as they would either steal from or take advantage of him. The Veteran reported his work history as a foreman and “temp” jobs in maintenance; the Veteran stated that he was last employed in 2005 but left because he was trying to go back to school. The Veteran reported attending a community college for two years and earned an associate degree in electrical engineering. The Veteran indicated that he had been hired by five companies but was let go after background checks revealed he had a felony conviction on his record. The Veteran denied ever being fired from any position due to inability to perform his job duties; only let go after his “temp” job had run out. The Veteran reported having no problems getting along with co-workers or supervisors on most of his jobs. The Veteran reported that he was currently not working and “got tired of trying to find work.” The Veteran reported symptoms of depression, pain, stress and poor sleep. The Veteran described his mood a depressed, sad and low and indicated that he was always irritable and edgy. The Veteran stated that others have told him that he was “mean because [the Veteran] is always snappish, grouch, and speaks to others too sharply or in nasty tone”; however, the Veteran denied problems with anger outburst or anger management. The Veteran noted that if he was angry, he would raise his voice or shout but denied physical aggression or violence. The Veteran stated that he does not have the energy or “mindset” to do anything feels that “something is messing with” him to keep him from doing anything. The Veteran stated that he is always anxious and nervous all the time about his pain and finances and has difficulty relaxing and letting go of ruminative thinking; the Veteran further noted that “he does not want to deal with anything!” The examiner also noted the Veteran reported issues with concentration and short-term memory. The examiner found the Veteran with symptoms of depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; flattened affect; impaired judgement; impaired abstract thinking; disturbance of motivation and mood; difficulty establishing and maintaining relationships; difficulty adapting to stressful circumstances; and neglect of personal appearance and hygiene. The Veteran was observed to be alert and oriented. The examiner noted that while the Veteran was moderately clean, he was also poorly groomed with an unkempt, casual dress described as wearing a “T-shirt with holes and athletic pants”. The Veteran’s mood was reported to be depressed with highly constrict affect. The Veteran’s memory was found to be impaired with deficits noted in short-term, immediate recall and long-term components. The Veteran’s attention, focus and concentration was also noted to be impaired. The Veteran demonstrated poor insight but no issues in thought process. The Veteran denied hallucinations, suicidal and homicidal ideation. The Veteran did note that he would have occasional passive thoughts of death when in severe pain. The examiner found the Veteran’s symptoms caused occupational and social impairment with reduced reliability and productivity. The examiner noted on psychological testing, the profile pattern obtained suggested the Veteran was experiencing “a great deal of physiological distress and is having great difficulty adjusting psychologically.” The examiner noted that the Veteran’s symptoms of low stamina, physical weakness, chronic fatigue, tension and nervousness were reported to occur most of the time and found them “highly likely to mount with increased stress”. The examiner found the Veteran was “likely to overreact to even minor physical changes with extreme concern.” The examiner noted that the Veteran’s interaction with others would be problematic as the Veteran’s “usual pattern of response may involve a lot of whining and complaining, as [the Veteran] is rather dependent and seeks to have others take care of his personal needs, sometimes responding with hostility and irritability when others do not meet his expectations.” In August 2014 the Veteran reported an increase in anxiety and stress and requested a mental health evaluation. In a November 2014 mental health consultation, the Veteran reported that “I am stressed out.” The Veteran stated that he has noted an increased in symptoms in the past 6 months to include low energy; poor motivation; decreased appetite with weight loss; increased irritability; poor sleep; and isolative behavior. The Veteran stated that he was married to his wife of 17 years and described their relationship as very strained and that they were “lucky to still be together” due to financial stress. The Veteran later described a poor relationship, stating that he and his wife live in the same house but have little interaction. The Veteran stated that he has little energy to do anything at home and rarely leaves the house other than for medical appointments and to help his mother. The Veteran reported that he was charged with DUI and vehicular homicide in 1998; the Veteran stated that he agreed to plead guilty “with the expectation of getting diversion” and believed that his attorneys “conspired against him” when he was sentenced to 3 years in prison ans served 4 months in jail. The Veteran reported that he has not worked since 2005 and that he last worked in warehouse work but was unable to do this sort work due to medical issues. The Veteran also noted that he had great difficulty getting hired by anyone after his felony conviction for vehicular homicide. The Veteran was observed to be alert and oriented with fair grooming and appropriate dress. The Veteran was cooperative and reasonable with normal speech and thought process. The Veteran’s mood was reported to be dysphoric with affect congruent with mood. The Veteran demonstrated fair insight and good judgement. The Veteran’s memory was found to be intact but with some difficulty recalling dates of major events in his life. The Veteran denied suicidal and homicidal ideation. The Veteran was afforded a March 2016 VA examination. Regarding his family and social situation, the Veteran reported that he was still married for 15 years but stated it was a poor relationship with poor communication and both sides stressed and depressed. The Veteran reported a good relationship with his daughter. The Veteran stated that he has had no friends in a long time and most of the time he stays at home. The Veteran reported that in the past year and a half he has had no job, not tried to get a job or take any educational or vocational classes. The Veteran reported symptoms of night sweats and severe headaches which prevent him from getting a good sleep. The Veteran stated that he stays depressed most of the time as well as pain in his neck, head, and shoulder. The Veteran denied any relevant legal or substance abuse history. The examiner found the Veteran with symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly; chronic sleep impairment; mild memory loss; flattened affect; disturbance of motivation and mood; and difficulty adapting to stressful circumstances. The Veteran was observed to be casually dressed and demonstrated good grooming and hygiene. The Veteran was calm and cooperative with normal speech. The Veteran’s mood was reported to be depressed with flat affect. The Veteran was oriented with fair memory and concentration. The Veteran demonstrated poor to fair insight and fair to good judgement. The Veteran denied hallucinations, suicidal and homicidal ideation. The examiner found the Veteran’s symptoms caused occupational and social impairment with reduced reliability and productivity. In a December 2017 psychological consultation, the Veteran was evaluated for anxiety and posttraumatic stress disorder (PTSD) symptoms. The Veteran reported issues with trauma-related symptoms, anxiety, depression, and sleep issues. The Veteran stated that he has more dreams about Vietnam and finds it harder to forget about them and go back to sleep. The Veteran stated that he avoids spending time with other people and will not leave his home at night. The Veteran stated that he has to force himself to do things with his 12-year old adopted daughter and doing anything with others is very hard on him. The Veteran reported a good relationship with his spouse but indicated that he has learned to avoid certain conversations; the Veteran noted that his spouse “often complains that [the Veteran] is too withdrawn and tells him that she does not think he still loves her.” The Veteran noted that he and his spouse try not to spend 24 hours together. The Veteran reports that he has a good relationship with his brothers, but his sister is very confrontational and therefore they avoid each other. The Veteran reported a having a group of friends that he used to eat with together but noted that it has been reduced and they do not stay in contact often. The Veteran also noted that he used to talk to his neighbors but as since then put up a wooden fence to decrease social contacts. The Veteran noted that it was easy for him to get “riled up” and tries his best to avoid subjects that might get out of control and does not want to “go off on somebody.” The Veteran reported symptoms of increased arousal symptoms to include irritability; anger; hypervigilance; poor concentration and sleep disturbance. The Veteran reported depressive symptoms to include decreased pleasure; feeling down and depressed; fatigue and low energy; change in appetite; lack of confidence; trouble sustaining focus and attention; and restlessness. The Veteran complained of feeling on-edge, nervous and inability to control worrying. The Veteran reported that he was currently retired and stated that his usual occupation was a computer programmer. The Veteran also reported he was arrested for assault in 1998. The Veteran was observed to be dressed in casual fall attire and demonstrated good grooming and hygiene. The Veteran was alert and oriented. The Veteran’s mood was reported to be depressed with anxious affect. The Veteran demonstrated organized though process, fair insight and fair judgement. The Veteran reported impairment of short-term memory but with grossly intact cognitive functioning. The Veteran denied suicidal and homicidal ideation. At the Veteran’s August 2019 hearing, the Veteran testified that his mental disorder was not getting any better. The Veteran stated that he had issues with his memory and was unable to socialize and mainly stayed at home. The Veteran was afforded a December 2019 VA examination. The Veteran reported continuing to live with his wife of 18 years. The Veteran stated there was no marital conflict but noted decreased intimacy due to his erectile dysfunction. The Veteran stated that he continues to have good support from his daughter but also stress due to her conflict with her husband. The Veteran reported regular contact with his mother and his siblings but noted there was conflict with other siblings due to “fighting over conservatorship” with their mother and estate, causing stress. The Veteran reported few other supports from his friends. The Veteran reported that he had been unemployed since 2009 and supported only by VA compensation. The Veteran reported stress regarding the amount of income and reported “things are tight”; and was noted to be requesting an increase in compensation to help with household needs. The Veteran reported depressive symptoms due to quality of life and conflict at home. The Veteran expressed excessive worry due to the Veteran’s health issues and chronic pain which he focuses on when stressed. The examiner noted the Veteran reported “suspicion of doctors not taking him seriously or fabricating his symptoms” along with preoccupations of other health issues such as cancer or heart disease “without medical foundation.” The examiner found the Veteran with symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; and disturbances of motivation and mood. The Veteran was observed to be alert and oriented. The Veteran presented as well groomed, pleasant and cooperative. The Veteran’s mood was reported as euthymic with affect congruent to mood. The examiner found no disturbance in the Veteran’s speech, memory or thought process. The Veteran demonstrated limited insight and judgement. The Veteran denied hallucinations, suicidal and homicidal ideation. The examiner found the Veteran’s symptoms to result in occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks with general functioning with normal routine behavior, self-care and conversation. After review of the evidentiary record, medical as well as lay evidence, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 50 percent for the Veteran’s major depressive with somatic symptoms disorder. As noted, in order to warrant a 70 percent rating, the evidence must show occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation, obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Review of the medical treatment records and examinations of record show the Veteran was generally assessed as alert and oriented with appropriate grooming and hygiene. The Veteran demonstrated logical thought process and there was no finding of speech that was intermittently illogical, obscure or irrelevant. The Veteran’s thinking had also consistently been found to be intact and unimpaired and there was no evidence of delusions or impaired thought processes. The Board notes in the September 2014 VA examination the examiner found the Veteran with symptoms of or experiencing continuous panic attacks as well as neglect of personal appearance. However, review of the record following the examination does not show any further reports or findings of continuous panic attacks from the Veteran, as VA examinations in March 2016 found panic attacks occurring weekly and December 2019 found no such symptoms. These examinations also found the Veteran as well-groomed with no issues or problems with hygiene. The Board notes the record also shows the Veteran at the September 2014 VA examination admitted to occasional passive thoughts of death during periods of severe pain. However, the Veteran also denied suicidal ideation this examination and the September 2014 VA examiner did not find this sufficient to find a symptom of suicidal ideation. Review of the medical record to include VA examinations in March 2016 and December 2019 show the Veteran denied suicidal ideation and the examiners also did not find the Veteran with suicidal ideation. The Board notes the record showing the Veteran reporting symptoms of anger and irritability. The Veteran at a December 2017 mental health consultation reported that it was easy for him to get “riled up” and he reported symptoms of irritability and anger where he avoided situations where he could “go off on somebody.”. However, the treating providers did not find the Veteran to be a risk to others and, review of the evidence during the appeal period does not show any documented evidence or finding by the providers to include the September 2014, March 2016 and December 2019 VA examinations to find the Veteran with symptoms of impaired impulse control or that such irritability resulted into physical outbursts or periods of violence. The Board notes that the Veteran has reported a poor relationship with his marriage and family members; however, the Veteran in the September 2014, March 2016, and December 2019 VA examination reported a continued marriage to his current wife and a good relationship with his daughter. The Board has considered the Veteran’s statements regarding the severity of the Veteran’s major depressive and somatic symptom disorder. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the evidence of record as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions are outweighed by the evidence of record. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). As such, the Board finds that the observed psychiatric symptoms interfered with the Veteran’s social and occupational function but did not result in deficiencies in most areas of social and occupational function. Therefore, the evidence fails to establish that a disability evaluation in excess of 50 percent for the Veteran’s major depressive and somatic symptom disorder was warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Total Disability Rating Based on Individual Unemployability (TDIU) prior to July 7, 2014 VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. § § 3.340, 3.341, 4.16. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16 (a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Alternatively, if a veteran is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), the rating authority should refer the matter to the Director of the Compensation and Pension Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16 (b) (2018). The veteran is not required to show 100 percent unemployability; the question is whether he or she is unable to pursue a substantially gainful occupation. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Whether the veteran can actually find employment is not determinative, as the focus of the inquiry is on “whether the veteran is capable of performing the physical and mental acts required by employment.” Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (emphasis in original). The Board cannot consider entitlement to TDIU on an extraschedular basis in the first instance, but it is required to ensure that all cases where there is evidence of unemployability due to service-connected conditions are referred to the Director for initial consideration under 38 C.F.R. § 4.16 (b). See Bowling v. Principi, 15 Vet. App. 1 (2001). The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib, 733 F.3d at 1354 (citing 38 C.F.R. § 4.16 (a)). The Veteran asserts entitlement to TDIU prior to July 7, 2014. The Veteran is service connected for major depressive with somatic symptoms disorder evaluated at 50 percent effective from July 7, 2014; right shoulder adhesive capsulitis evaluated at 30 percent from December 18, 2008; cervical spine degenerative disc disease evaluated at 20 percent from December 18, 2008; residuals from a T1 transverse process fracture evaluated at 0 percent from September 1, 2016, 10 percent from February 13, 2019, and 20 percent from March 14, 2020; tinnitus evaluated at 10 percent from July 7, 2014; status post dislocation of right first rib at a noncompensable rating from April 15, 2005; and headaches at a noncompensable rating from July 7, 2014. The Veteran’s combined rating was 30 percent from April 15, 2005; 40 percent from December 18, 2008; and 80 percent from July 7, 2014. Accordingly, the Veteran did not meet the schedular criteria for TDIU for the period prior to July 7, 2014, as his combined disability rating was below 70 percent, or he did not have a service-connected disability evaluated at least 60 percent prior to July 7, 2014. Nevertheless, entitlement to a TDIU may be considered on an extraschedular basis under 38 C.F.R. § 4.16 (b). Review of the medical treatment record shows in December 2006 the Veteran was noted to be applying for a job at the hospital he was being seen for treatment. In January 2007, the Veteran sought compensated work therapy (CWT) benefits. The Veteran stated that he was working as a tree trimming supervisor “but had to downgrade myself…I couldn’t keep climbing those trees.” The Veteran remarked on the reduced pay but was notified that CWT was not available to currently employed workers. The Veteran responded that “I can’t keep doing this. I was doing this to bring something in. I’ve been telling my supervisor it’s been giving [me] problems.” The Veteran stated his plans to return to school and indicated that he had a year left to complete his associate degree. In a February 2007 CWT consultation, the Veteran reported applying for positions to include “excusion operator”, maintenance helper, forklift operator, and warehouse worker. The Veteran stated that he last worked for a tree contractor service as a foreman 3 months ago and that he had to leave the job for “health reasons.” The Veteran did not provide any detail as to which particular health issue caused him to leave. The Veteran expressed his main goal to get back into school and to purchase rental property. The Veteran indicated that he wished to complete his associate degree in mechanical engineering and noted that he last attended the communication college from August 2005 to August 2006. In a followup March 2007 CWT note, the Veteran stated that he was postponing the CWT process. The Veteran stated that he had an appointment with vocational rehabilitation and wished to see what they had to see before moving forward. In a February 2009 VA examination for the Veteran’s cervical spine disability, the Veteran reported that he was a current student. The examiner found the Veteran’s symptoms would make it difficult to perform heavy duty and some duties with light duty. In medical record visits from December 2009 to June 2010, the Veteran reported that he was studying electrical engineering. In November 2010 the Veteran reported graduating from community college with a degree in electrical engineering. In an April 2011 VA examination for the Veteran’s cervical spine disability, the Veteran reported that he was currently not working and therefore his disability had no impact on his job. In June 2011 the Veteran reported that he just lost his job but did not give any details or clarification as to what job this was or the reasons which he lost it. This report would also appear in followup visits through November 2013. At the Veteran’s September 2014 VA examination for a mental disability, the Veteran reported a work history as a foreman and “temp” jobs in maintenance. The Veteran stated that he last worked in 2005 and stopped because he was trying to go back to school; the Veteran stated that he spent 2 years in community college and in 2010 obtained a degree in electrical engineering. The Veteran reported no issues with his co-workers or supervisors and stated that he was only let go when his “temp” job ran out. The Veteran noted that he had been hired by 5 companies but then let go when a background check found a felony conviction. The Board notes that the Veteran at this examination reported that in 1998 he was convicted of a DUI and vehicular manslaughter for which he served jailtime. The Veteran reported that he was currently not working because he “got tired of trying to find work.” The examiner noted the Veteran had difficulty sustaining gainful employment since discharge, holding a number of positions but unable to be employed consistently. The examiner noted that contributing factors included chronic pain, depressed mood, constant worry about physical problems, irritability, impaired concentration, and difficulty getting along with others. The examiner remarked “as the Veteran’s physical problems intensify without improvement… [the Veteran’] is unable to sustain employment” which impacted his financial status and relationship.” In a separate September 2014 VA examination for headaches, the examiner found the disability did not result in functional impact and the Veteran had not worked since 2005 and last worked as a foreman. In a November 2015 TDIU application, the Veteran reported that a spinal disability and depression caused him to be unemployed. The Veteran reported a work history from June 2000 to August 2007 as a foreman and from October 2010 to February 2011 in a temporary service job. The Veteran stated that he last worked and became too disabled to work from August 2007. The Veteran indicated that he obtained an associate degree in electrical engineering after going to community college from 2006 to 2010. The Veteran also submitted correspondence to show financial documents indicating his last check from his temp job was received in February 2011. In a November 2014 mental health consultation, the Veteran reported that he had been unable to work since 2005; the Veteran stated that he last worked in a warehouse but stopped due to a “medical issue” without providing clarification on what this medical issue was or how it impacted his ability to work. The Veteran noted that in 1998 he pled guilty to a DUI and vehicular homicide and noted difficulty getting hired due to this felony conviction. In a March 2016 VA examination for headaches, the examiner found the disability did not result in functional impact. In a separate March 2016 VA examination for mental disorders, the Veteran reported that he has not worked in the past year and a half but did not elaborate what his previous job was or reason for leaving. In a March 2016 record the Veteran reported quitting his previous job as a foreman secondary to a decreased ability to lift, push, pull or pull due to his right shoulder disability. In a May 2016 VA examination for the Veteran’s cervical spine disability, the Veteran noted that his disability caused functional impact. The Veteran stated that during his previous work as a tree trimming foreman his duties required him to keep looking up every day to inspect the work; the Veteran stated that increased neck pain prevented him from doing this job and he was currently on disability. In an August 2016 notice of disagreement (NOD), the Veteran stated that VA examinations indicated that he was unable to work or hold employment and stated that he had to leave his last job due to neck, shoulder and headache issues. In a December 2017 psychology consultation, the Veteran reported that he was retired with his usual occupation as a computer programmer; the Veteran indicated he had an associate and bachelor’s degree in computer science and accounting. The Veteran also reported that he was arrested for assault in 1998. In a December 2019 VA examination for mental disorders, the Veteran reported that he had been unemployed since 2009 and relied upon VA compensation; the Veteran requested an increase in compensation to help with household needs. In a February 2019 Social Security Administration (SSA) evaluation, the Veteran applied for Social Security benefits based upon a back disability and mental disorder. The Veteran assert that he became disabled in July 2011 due to his back and depression. The Veteran reported completing a 12th grade education. The Veteran reported a work history from 1997 to 2007 and from 2010 to 2011 as a warehouse worker. The SSA evaluated did not find the Veteran to be disabled. The Board finds that referral is not warranted for extraschedular consideration as the available evidence does not demonstrate that the Veteran’s service-connected disabilities precluded following a substantially gainful occupation prior to July 7, 2014. The Board notes that review of the record shows inconsistencies with the Veteran’s statements in comparison with other credible evidence of record. The Veteran in February 2007 and in May 2016 reported that issues with his neck during his duties as a tree trimming foreman caused him to leave his job; however, in April 2011 the Veteran reported that his cervical neck disability did not cause any functional impact and in September 2014 stated that he was only let go when his temp jobs ended and left his last job as a tree foreman to go back to school. The Veteran in September 2014 also stated that he was no longer working because he “got tired of trying to find work.” The Veteran has also reported in November 2010 and September 2014 that he had obtained an associate degree in electrical engineering; this conflicts with a December 2017 psychiatric consultation where the Veteran reported having an associate and bachelor’s degree in computer science and account, and a February 2019 SSA evaluation where the Veteran only reported completing at most a 12th grade education. The Veteran in November 2014 mental consultation reported a conviction in 1998 for DUI and vehicular manslaughter and the Veteran noted that he experienced great difficulty getting hired due to the felony conviction; this conflicts with the December 2017 consultation where the Veteran only reported being arrested in 1998 for assault. The reported inconsistencies further indicate that the histories and statements the Veteran has provided for VA disability compensation purposes are at odds with other histories that were previously given for other purposes, including for treatment purposes; therefore, the Board affords these statements less probative weight. Nonetheless, the Board acknowledges that the focus of a TDIU rating should not be on the Veteran’s unemployment and the reasons why he is unemployed; rather, the focus must be on whether his service-connected disabilities currently render him unable to secure or follow substantially gainful employment. The Veteran’s report of his employment history and when he became disabled somewhat inconsistent. In a September 2014 and November 2014 VA examination the Veteran reported that he stopped working in 2005 conflicting with a March 2016 VA examination the Veteran reported not working the past year and a half, a December 2019 VA examination the Veteran reported he was unemployed since 2009 and a February 2019 SSA evaluation he reported last working in 2011. Although the September 2014 VA examiner opined that the Veteran’s physical problems contributed to issues sustaining employment consistent and made him unable to sustain employment, the examiner also noted that diagnostic testing of the Veteran came back results of “questionable validity” and noted that the Veteran’s physical symptoms would likely mount with increased stressed. The examiner also noted that the Veteran “likely overacted to even minor changes with extreme concerns and complaints.” The Board notes that the other medical examinations and reports on record indicate the Veteran’s disabilities caused some functional impairment but did not opine or find that the impairments prevented the Veteran from obtaining or maintaining substantially gainful employment. The Board observes that while the Veteran’s past work experience is limited, he completed high school and as well as obtaining an associate degree in electrical engineering. On the other hand, it is also clear that he has not sought employment in a number of years. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board notes that the Veteran’s felony conviction also impair his ability to find work. In turning to the question of whether the Veteran is unable to obtain or sustain gainful employment due to his service-connected disabilities, the Veteran essentially asserted an inability to engage in substantial employment due to his service-connected disabilities. However, the level of severity claimed by the Veteran is not borne out by the other evidence of record, which shows that the Veteran retained significant functional ability throughout the appeal period. As such, the record does not show medical records that prior to July 7, 2014 the Veteran’s service-connected disabilities rendered him incapable of maintaining substantially gainful employment. Therefore, application of 38 C.F.R. § 4.16 (b) governing extraschedular TDIU is not warranted, and the Board finds that referral of this claim to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16 (b) is not warranted for the period prior to July 7, 2014. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.